exv10w5





Exhibit 10.5



CONSULTING AGREEMENT




     This agreement dated this 1st day of July, 2008 (the “Effective Date”), is executed by and
between MiddleBrook Pharmaceuticals, Inc., a Delaware corporation (the “Company”), located at 20425
Seneca Meadows Parkway, Germantown, MD 20876, and John S. Thievon (the “Consultant”), located in
Denton County, Texas (the “Agreement”).



     WHEREAS, Equity Group Investments, LLC (“EGI”) and the Company have entered into a
Securities Purchase Agreement of even date herewith (the “Purchase Agreement”) pursuant to which
the parties thereto have agreed, upon the terms and subject to the conditions set forth therein,
that the Company will sell to EGI (i) 30,303,030 shares of the authorized but unissued shares of
common stock, $0.01 par value per share, of the Company (the “Common Stock”) and (ii) a warrant to
purchase an aggregate of 12,121,212 shares of Common Stock (such transaction known as the
“Transaction”);



     WHEREAS, the Consultant and the Company have entered into an employment agreement (the
“Employment Agreement”) of even date herewith contingent upon the Closing (as defined in the
Purchase Agreement) of the Transaction, and effective as of the Closing Date (as defined in the
Purchase Agreement) of the Transaction (such effective date of the Employment Agreement referred to
herein as the “Commencement Date”);



     WHEREAS, the Company desires to obtain consulting services from Consultant commencing on the
Effective Date, which the parties intend to be provided pursuant to such terms and conditions as
are set forth in this Agreement; and



     WHEREAS, based on the nature of the relationship that the parties intend to establish, the
Company hereby engages the Consultant as an independent contractor and the Consultant shall hereby
provide consulting services on the terms and conditions provided and described in this Agreement.



     NOW, THEREFORE, in consideration of the mutual promises and covenants of the parties as herein
contained, the parties hereto agree and contract as follows:




	1)	 	The term of this Agreement (the “Term”) shall commence on the Effective Date and shall
automatically terminate immediately and become null and void upon the earlier to occur of (i)
the Commencement Date, (ii) the termination of the Purchase Agreement pursuant to Section 7
thereof, (iii) the Consultant’s cessation of services to the Company provided hereunder, or
(iv) a termination of this Agreement pursuant to Paragraph 11.






	2)	 	Commencing on the Effective Date, the Consultant shall provide such consulting services with
respect to the business of the Company as the Company reasonably requests. The consulting
services that may be requested of Consultant shall be of a nature that reflects and is
consistent with Consultant’s skills, experience, expertise and services. The Consultant




 









 












	 	 	shall perform such services in a thorough, efficient, and workmanlike manner, promptly and with
due diligence and care, and in accordance with that standard of care and skill ordinarily
exercised by members of the profession performing similar services. In addition, Consultant
shall comply with all applicable federal, state and local statutes, ordinances and regulations
in the course of performing such objectives.






	3)	 	Consistent with the parties’ intent that the relationship created by this Agreement be that
of service recipient and independent contractor, Consultant shall retain the exclusive right
to control and direct all details of the services that Consultant performs hereunder,
including where, when and how the services are to be performed. Consultant’s failure to
accomplish the services by the applicable deadline, however, shall constitute a material
breach of this Agreement, unless the Company agrees to an extended deadline.






	4)	 	During the Term, Consultant shall not be eligible to participate in any benefit programs that
the Company now or hereafter maintains for its employees with respect to services performed
hereunder, and Consultant hereby waives any such right to participate in the programs. This
waiver of any right to participate in Company-sponsored employee benefit programs represents a
material component of the terms of compensation agreed to by these parties and is not in any
way conditioned on any representation or assumption concerning status of Consultant with
respect to the Company as an employee or independent contractor.






	5)	 	For all purposes, including but not limited to the Federal Insurance Contributions Act, the
Social Security Act, the Federal Unemployment Tax Act, income tax withholding and any and all
other federal, state and local laws, rules and regulations, Consultant shall be treated as an
independent contractor and not as an employee with respect to the Company.






	6)	 	Consultant acknowledges and agrees that Consultant shall be responsible (as a self-employed
individual) for filing all tax returns, tax declarations and tax schedules, and for the
payment of all taxes required, when due, with respect to any and all compensation earned by
Consultant under this Agreement. The Company will neither pay nor withhold any employment
taxes with respect to the compensation it pays Consultant. Rather, the Company will report
the amounts it pays Consultant on IRS Forms 1099, to the extent required to do so under
applicable Internal Revenue Code provisions.






	7)	 	Consultant’s fees for services provided under this Agreement shall annually be Five Hundred
Thousand USD ($500,000) pro-rated and paid on a monthly basis for the full and partial months
during the Term, plus reasonable expenses as approved in accordance with Company policies.
The Company will not reimburse Consultant for any other expenses incurred in connection with
the performance of services hereunder unless otherwise agreed by the Company. For purposes of
satisfying Section 409A of the Internal Revenue Code of 1986, as amended, the parties agree
that any amount reimbursed hereunder for one calendar year shall not affect the amounts
reimbursed for other calendar years, and all reimbursement payments, if any, shall in all
events be made no later than the end of the calendar year following the calendar year in which
the applicable expense is incurred.




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	8)	 	The Consultant reserves the right to, and intends to, perform services for others, so long as
the performance of such services does not interfere with the performance of services
hereunder.
	 
	9)	 	The Consultant recognizes and acknowledges that the Proprietary Information (as hereinafter
defined) is a valuable, special and unique asset of the Company. As a result, both during the
Term and thereafter, the Consultant shall not, without the prior written consent of the
Company, for any reason either directly or indirectly divulge to any third-party or use for
his own benefit, or for any purpose other than the exclusive benefit of the Company, any
confidential, proprietary, business and technical information or trade secrets of the Company
or of any subsidiary or affiliate of the Company (the “Proprietary Information”) revealed,
obtained or developed during the Term of the Agreement. Proprietary Information shall include
any confidential or proprietary information or trade secrets relating to any patents or other
intellectual property assigned by the Consultant to the Company. Proprietary Information also
shall include, but shall not be limited to the intangible personal property described in
Paragraph 10 hereof and, in addition, technical information, including research design,
results, techniques and processes; apparatus and equipment design; computer software;
technical management information, including project proposals, research plans, status reports,
performance objectives and criteria, and analyses of areas for business development; and
business information, including project, financial, accounting and personnel information,
business strategies, plans and forecasts, customer lists, customer information and sales and
marketing plans, efforts, information and data. In addition, Proprietary Information shall
include all information and materials received by the Company or Consultant from a third party
subject to an obligation of confidentiality and/or non-disclosure. Nothing contained herein
shall restrict Consultant’s ability to make such disclosures during the Term of the Agreement
as may be necessary or appropriate to the effective and efficient discharge of the duties
required by the Agreement or as such disclosures may be required by law. Furthermore, nothing
contained herein shall restrict Consultant from divulging or using for his/her own benefit or
for any other purpose any Proprietary Information that is readily available to the general
public so long as such information did not become available to the general public as a direct
or indirect result of Consultant’s breach of this Paragraph 10. Failure by the Company to
mark any of the Proprietary Information as confidential or proprietary shall not affect its
status as Proprietary Information under the terms of this Agreement. The obligations of this
Paragraph 10 shall survive the termination of this Agreement.
	 
	10)	 	All right, title and interest in and to Proprietary Information shall be and remain the sole
and exclusive property of the Company. During the Term, Consultant shall not remove from the
Company’s offices or premises any documents, records, notebooks, files, correspondence,
reports, memoranda or similar materials of or containing Proprietary Information, or other
materials or property of any kind belonging to the Company, unless necessary or appropriate
for the performance of Consultant’s duties under this Agreement and, in the event that such
materials or property are removed, all of the foregoing shall be returned to their proper
files or places of safekeeping as promptly as possible after the removal shall serve its
specific




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	 	 	purpose. Consultant shall not make, retain, remove and/or distribute any copies of any of the
foregoing for any reason whatsoever, except as may be necessary in the discharge of the assigned
duties and shall not divulge to any third person the nature of and/or contents of any of the
foregoing or of any other oral or written information to which he may have access or with which
for any reason he may become familiar, except as disclosure shall be necessary in the
performance of the duties; and upon the expiration of the Term of this Agreement, Consultant
shall return to the Company all originals and copies of the foregoing then in his/her possession
or under his/her control, whether prepared by Consultant or by others.






	 	 	The Consultant acknowledges that all right, title and interest in and to any and all writings,
documents, inventions, discoveries, ideas, developments, information, computer programs or
instructions (whether in source code, object code, or any other form), algorithms, formulae,
plans, memoranda, tests, research, designs, innovations, systems, analyses, specifications,
models, data, diagrams, flow charts, and/or techniques (whether patentable or non-patentable or
whether reduced to written or electronic form or otherwise) that Consultant creates, makes,
conceives, discovers or develops, either solely or jointly with any other person, at any time
during the Term, whether during working hours or at the Company’s facility or at any other time
or location, and whether upon the request or suggestion of the Company or otherwise,
(collectively, “Intellectual Work Product”) shall be the sole and exclusive property of the
Company. Consultant shall promptly disclose to the Company all Intellectual Work Product, and
Consultant shall have no claim for additional compensation for the Intellectual Work Product,
except for any excluded Intellectual Work Product that is wholly unrelated to the pharmaceutical
industry, in the broadest sense, provided that such Intellectual Work Product is not conceived,
discovered or developed, either solely or jointly with any other person during working hours or
at the Company’s facility or using any other Company resource.






	 	 	The Consultant acknowledges that all the Intellectual Work Product that is copyrightable shall
be considered a work made for hire under United States Copyright Law. To the extent that any
copyrightable Intellectual Work Product may not be considered a work made for hire under the
applicable provisions of the United States Copyright Law, or to the extent that, notwithstanding
the foregoing provisions, Consultant may retain an interest in any Intellectual Work Product,
Consultant hereby irrevocably assigns and transfers to the Company any and all right, title, or
interest that Consultant may have in the Intellectual Work Product under copyright, patent,
trade secret and trademark law, in perpetuity or for the longest period otherwise permitted by
law, without the necessity of further consideration. The Company shall be entitled to obtain
and hold in its own name all copyrights, patents, trade secrets, and trademarks with respect
thereto. Consultant shall reveal promptly all information relating to any such Intellectual
Property to the board of directors of the Company, and, at the Company’s expense, shall
cooperate with the Company and execute such documents as may be necessary or appropriate (i) in
the event that the Company desires to seek copyright, patent or trademark protection, or other
analogous protection, thereafter relating to the Intellectual Work Product, and when such
protection is obtained, renew and




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	 	 	restore the same, or (ii) to defend any opposition proceedings in respect of obtaining and
maintaining such copyright, patent or trademark protection, or other analogous protection.
	 
	 	 	In the event the Company is unable after reasonable effort to secure Consultant’s signature on
any of the documents referenced in this Paragraph 13, whether because of Consultant’s physical
or mental incapacity or for any other reason whatsoever, Consultant hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents as Consultant’s
agent and attorney-in-fact, to act for and on the behalf and stead to execute and file any such
documents and to do all other lawfully permitted acts to further the prosecution and issuance of
any such copyright, patent or trademark protection, or other analogous protection, with the same
legal force and effect as if executed by Consultant.
	 
	 	 	Consultant represents that the innovations, designs, systems, analyses, ideas, and all
copyrights, patents, trademarks and trade names, or similar intangible personal property
(collectively, the “Pre-existing Property”) identified on Schedule I hereof comprise all
of the innovations, designs, systems, analyses, ideas and all copyrights, patents, trademarks
and trade names, or similar intangible personal property that Consultant has made or conceived
of prior to the date hereof, and same are excluded from the operation of the other provisions of
this Paragraph 13. In the event that Consultant learns of any Pre-existing Property that he
inadvertently failed to include in Schedule I, and the circumstances surrounding the failure of
such inclusion are reasonably satisfactory to the Company, Consultant and the Company shall
jointly amend Schedule I to include such property. The obligations of this Paragraph 12 shall
survive the termination of this Agreement.
	 
	11)	 	This Agreement may be terminated (i) by one party hereto upon a material breach of the
Agreement by the other party hereto (the “Breaching Party”) and notice of such breach given by
the first party to the Breaching Party, in which case the termination shall be effective on
the date the notice is received by the Breaching Party, or (ii) upon mutual written agreement
of the parties hereto.
	 
	12)	 	This Agreement shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware. Any and all disputes arising out of, relating to the performance of
services contracted for under, this Agreement, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association, or any
successor thereto then prevailing. Such arbitration shall be final and binding upon the
parties, and shall be the sole and exclusive remedy of the parties with respect to any dispute
arising out of, relating to, or resulting from the interpretation of the terms of this
Agreement, or any breach thereof. The costs of such arbitration shall be borne equally by the
parties. Notwithstanding the foregoing provisions of this Paragraph 12 to the contrary,
matters in which an equitable remedy or injunctive relief is sought by a party, shall not be
required to be submitted to arbitration, if the party seeking such remedy or relief objects
thereto, but instead shall be submitted to a court of law having appropriate jurisdiction.
This Paragraph 12 shall survive the termination of this Agreement.




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	13)	 	This Agreement shall constitute the entire written agreement between the parties, and shall
supersede any and all agreements or understandings in effect between the parties hereto;
provided, however, that this Agreement shall not affect in any way the rights and obligations
of the Company and Consultant under the Employment Agreement. This Agreement may not be
modified except by written agreement executed by the parties hereto.






	14)	 	Each provision of this Agreement shall be treated as a separate and independent clause, and
the unenforceability of any one clause shall in no way impair the enforceability of any of the
other clauses herein. Moreover, if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to scope, activity, subject or
otherwise so as to be unenforceable at law, such provision or provisions shall be construed by
the appropriate judicial body by limiting or reducing such provision or provisions, so as to
be enforceable to the maximum extent comparable with the applicable law as such law shall then
be.






	15)	 	No breach of any provision hereof can be waived unless in writing. Waiver of any breach of
any provision hereof shall not be deemed to be a waiver of any other breach of the same, or
any other provision.






	16)	 	Any notice required or permitted under this Agreement shall be in writing and shall be deemed
given upon the earlier of (a) when it is personally delivered, (b) three (3) days after having
been mailed by certified mail, postage prepaid, return receipt requested or (c) two (2) days
after having been sent by recognized overnight delivery service, in all cases sent to the
address first set forth above, or to such other address as the person to whom notice is to be
given may have previously furnished to the other in writing in the manner set forth herein.





[signatures on following page]




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
above written.



	 	 	 	 	 	 	 	 	 	 	 
	MIDDLEBROOK PHARMACEUTICALS, INC.	 	 	 	CONSULTANT	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/
Edward M. Rudnic	 	 	 	/s/ John S. Thievon	 	 
	 	 	 	 	 	 	 	 	 
	Name:

	 	Edward M. Rudnic, Ph.D.
	 	 	 	Name:
	 	John S. Thievon	 	 
	Title:

	 	President & Chief Executive
Officer
	 	 	 	TIN: